Gravitt v. Bear
| Decision Date | 09 September 2020 |
| Docket Number | Case No. CIV-19-551-R |
| Parties | JERAD KEITH GRAVITT, Petitioner, v. CARL BEAR, Warden, Joseph Harp Correctional Center, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Petitioner Jared Gravitt, a state prisoner, filed this action seeking relief pursuant to 28 U.S.C. § 2254. Doc. No. 1. In accordance with 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred to United States Magistrate Judge Shon T. Erwin for preliminary review. On November 26, 2019, Judge Erwin issued his Report and Recommendation. Doc. No. 20. The matter is currently before the Court on Mr. Gravitt's timely objection, Doc. No. 29. Respondent Warden Bear has responded in opposition to the objection, Doc. No. 30, and Mr. Gravitt has replied, Doc. No. 44. Cognizant of its obligation to undertake a de novo review of those portions of the Report and Recommendation to which Mr. Gravitt makes specific objection, and having conducted such review, the Court finds as follows.
On May 4, 2014, at approximately 2:00 a.m., Mr. Gravitt and his girlfriend, Brittany Tabor, walked into a Walgreens store in south Oklahoma City, Oklahoma. The two loitered for some time, and a Walgreens employee, Rhonda Webber, suspected the two were planning to steal items from the store. Mr. Gravitt disappeared to the restroom, and after a ten-minute absence Ms. Webber asked the pharmacist, Troy Davis, to check on him. As Mr. Davis approached the bathroom, Mr. Gravitt exited and re-joined Ms. Tabor. Mr. Davis, believing the two were intoxicated and concerned they would drive, approached the pair and asked if he could get them a cab. They declined. Ms. Webber then instructed Mr. Davis to call the police.
Shortly thereafter, Mr. Gravitt and Ms. Tabor left the store. Ms. Webber followed the couple outside of the store and requested they return the items she suspected they had stolen. Mr. Gravitt walked towards Ms. Webber, handed her the items and a twenty-dollar bill and said, "just take it." She told him to keep the money, but to get off the property, and not to return. Mr. Gravitt responded by running up behind Ms. Webber with his knife in hand, kicking over a trash can in her path, cursing, and yelling that he would give her "a reason to call the cops." In kicking down the trash can Mr. Gravitt lost his footing and hit Ms. Webber in the arm but failed to stab her with the knife he was wielding. After the altercation, the couple ran from the store. Mr. Davis called 911 upon hearing, incorrectly, that Ms. Webber had been stabbed.
When the police arrived, Ms. Webber reported that the couple had run off. The reporting officer, Officer Nelson, reported the information via radio and set out in search of the couple. After hearing the report, Officer Duncan, Nelson's partner, made contact with the two subjects approximately three blocks away. After spotting Officer Duncan, Ms. Tabor dropped her belongings and placed her hands in the air. Mr. Gravitt, however, walked away from Officer Duncan, despite Duncan's commands that Mr. Gravitt stop moving. After he gained separation from Officer Duncan, Mr. Gravitt looked back over his shoulder, pulled out a gun, and shot at Officer Duncan three times. No bullets hit Officer Duncan, though one bullet flew by his head and hit the windshield of his patrol car. Mr. Gravitt took off running across the street, and despite an extensive search of the perimeter, after two hours the officers discontinued their search.
Mr. Gravitt was arrested at approximately 5:00 a.m. by Master Sergeant Brian Cook who had been involved in the search. Officer Cook had responded to a burglary call at 8401 South Indiana Avenue and found Mr. Gravitt sitting on a storage bin in the back yard of the home. Petitioner was only partially compliant with Officer Cook's commands, and ultimately Officer Cook utilized his canine unit to incapacitate Mr. Gravitt, who he believed was the suspect in the shooting involving Officer Duncan, and therefore might be armed. When handcuffed and searched, Mr. Gravitt did not have the gun in his possession; it was later recovered by police from a bush in the corner of the yard.
An Oklahoma County jury convicted Mr. Gravitt of assault with a dangerous weapon, shooting with intent to kill, and possession of a firearm after a former felony conviction. Doc. No. 7-1, p. 1. At trial Mr. Gravitt and Ms. Tabor testified that they had been doing drugs that night, and that their memories of the events were largely fuzzy. Id. at 14. Mr. Gravitt did not deny his involvement in the activities but asserted throughout trial that he could not be found guilty of assault and battery with a dangerous weapon or shooting with intent to kill because of his voluntary intoxication. As a result of his conviction Mr. Gravitt was sentenced to a term of 45 years imprisonment. Id. He filed a direct appeal in the Oklahoma Court of Criminal Appeals (OCCA), which affirmed his conviction. Doc. No. 7-2. Subsequently Mr. Gravitt filed an application for post-conviction relief in Oklahoma County District Court. Doc. No. 7-5. The district court conducted an evidentiary hearing before denying relief. Doc. No. 7-7. The OCCA affirmed the district court's denial, Doc. Nos. 7-8, 7-9, 7-10.
On June 18, 2019, Mr. Gravitt filed the petition now before the Court, seeking habeas relief pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), , 28 U.S.C. § 2254. Doc. No. 1. In his petition, Mr. Gravitt presents three grounds for relief. First, Mr. Gravitt contends that his Sixth and Fourteenth Amendment rights were violated because the trial court refused to instruct the jury on the defense of voluntary intoxication. Id. at 11-22. Second, Mr. Gravitt alleges that he received ineffective assistance of appellate counsel because his appellate counsel failed to argue that his trial counsel was ineffective for failing to hire an expert witness to testify about his level of intoxication. Id. at 22-37. Finally, Mr. Gravitt asserts that the above violations result in cumulative error. Id. at 37-38.
Judge Erwin recommends the Court deny Mr. Gravitt's petition for habeas relief. Doc. No. 20. He begins by recommending the Court deny Mr. Gravitt's first ground for relief because the trial judge acted appropriately in his instruction of the jury, the OCCA applied the correct standard in affirming the trial court's decision to not give the requested voluntary-intoxication instruction, and the absence of the aforementioned instruction did not render Mr. Gravitt's trial fundamentally unfair. Id. at 1-14. Judge Erwin further advises the Court to rely on Thornburg v. Mullin, 422 F.3d 1113, 1125-26 (10th Cir. 2005) where the Tenth Circuit found that a trial court's failure to include a jury instruction on voluntary intoxication did not render the trial fundamentally unfair. Doc. No. 20, pp. 14-16.
Next, Judge Erwin recommends the Court deny Mr. Gravitt's second ground for relief because, in accordance with Strickland v. Washington, 466 U.S. 668 (1984), Mr. Gravitt's trial counsel employed reasonable trial strategy in choosing not to retain an expert to testify regarding Mr. Gravitt's level of intoxication. Id. at 24-25. Thus, Mr. Gravitt's appellate counsel could not have been ineffective in failing to argue the ineffective assistance of trial counsel. Id. at 25-26.
Finally, Judge Erwin recommends the Court deny Mr. Gravitt's third and final ground for relief because there were no constitutional errors to cumulate. Id. at 26-27.
The AEDPA "circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings." Grant v. Royal, 886 F.3d 874, 888 (10th Cir. 2018) (quoting Hooks v. Workman ("Victor Hooks II"), 689 F.3d 1148, 1163 (10th Cir. 2012)). "Under AEDPA, a petitioner is entitled to federal habeas relief on a claim only if he can establish that the state court's adjudication of the claim on the merits (1) 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law'; or (2) 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Littlejohn v. Trammell ("Littlejohn I"), 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C. § 2254(d)(1), (2)).
The AEDPA standard is "highly deferential [to] state-court rulings [and] demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, (2002) (per curiam) (citation omitted) ). "A habeas petitioner meets this demanding standard only when he shows that the state court's decision was 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Grant, 886 F.3d at 888 (quoting Dunn v. Madison, — U.S. —, 138 S. Ct. 9, 11 (2017) (per curiam)). This "standard is difficult to meet . . . ." Harrington v. Richter, 562 U.S. 86, 103, (2011) (citations omitted). Id.
Mr. Gravitt submits several objections to Judge Erwin's Report and Recommendation. See Doc. No. 29. With the AEDPA standard in mind, the Court addresses the objections relevant to each of Mr. Gravitt's three grounds for relief.
Mr. Gravitt argues in his first ground for relief, as he did on direct appeal, that the trial court erred in refusing to instruct the jury on voluntary intoxication, Doc. No. 1, pp. 11-22, which can negate the intent necessary for a specific-intent crime. Fitzgerald v. State, 972 P.2d 1157, 1174 (Okla....
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